Case Summary and Outcome

A Polish District Court upheld a lower court’s decision to discontinue criminal defamation proceedings against an actress for statements she made in a social media post. The actress had responded to a video of border officials preventing a group of immigrants, including women and children, from crossing the Polish border with Belarus, and had said “They are heartless machines with no brains with NOTHING! Machines blindly following orders!”. She later removed the post and issued an apology. The Court acknowledged that the actress’s choice of words was inappropriate as they were insulting and vulgar, but stressed that the nature of the words did not justify a finding that the statement constituted criminal defamation.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

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Facts

On November 4, 2021, Barbara Kurdej-Szatan, a Polish actress, responded to a video shown on Instagram of the Polish Border Guard preventing immigrants – including crying women and children – from crossing the Polish-Belarusian border. She said, “It’s the f…ing border guard???? Guard???? They are heartless machines with no brains with NOTHING!!! Machines blindly following orders!!! How can this be!!! My heart hurts my chest shakes and I roar!!!! Murderers!!!”.

Kurdej-Szatan deleted the post and on November 9, 2021, posted an explanation saying,  “Ladies and Gentlemen, referring to the publicised issue of my emotional reaction and huge outrage on the situation on the border with Belarus, I would like to emphasise once again that my words concerned the specific situation depicted in the video. In my statement, for which I apologised for my vulgar vocabulary, I referred critically only to what I saw on the video published online at the time.”

On November 8, 2021, the District Prosecutor’s Office in Warsaw opened an investigation into Kurdej-Szatan for insulting Border Guard officers performing official duties at the Polish-Belarusian border, and on June 8, 2022, filed an indictment. Kurdej-Szatan was charged with defaming the Border Guard as a state institution and its officers, and so committing a criminal offence under Article 212 of the Penal Code.

Article 212 of the Penal Code. Article 212 § 1 states that “whoever slanders another person, group of persons, institution, legal person or organisational unit without legal personality of such conduct or properties which may bring him/her into disrepute in public opinion or expose him/her to loss of confidence necessary for a given position, profession or type of activity, shall be subject to a fine or the penalty of restriction of liberty. Article 212 § 2 emphasises that if the perpetrator commits the act specified in § 1 by means of mass communication media, he shall be subject to a fine, the penalty of restriction of liberty, or the penalty of deprivation of liberty for up to one year.”

Kurdej-Szatan pleaded not guilty and authorised the media to show her face and write about the case with the release of her image and name. On October 12, 2022, the Court received a request from Kurdej-Szatan’s lawyer to discontinue the proceedings on the grounds that there was low harm of the act and an absence of the elements of a criminal act.

On December 6, 2022, the Regional Court, 2nd Criminal Division discontinued the proceedings against Kurdej-Szatan. The Court referred to the decision of the Supreme Court of 31 March 2022, ref. II KK 39/22, on the distinction between evaluative statements and statements of fact and noted that defamation should concern statements of fact and Kurdej-Szatan’s statement was purely evaluative. The Court found that the content of Kurdej-Szatan’s post was not manifestly and grossly wrong, and identified the evaluative nature of the post as it referred to the recording and concerned the behaviour of the Border Guard in using physical force also against children and women. It added that Kurdej-Szatan’s post fell within the limits of freedom of expression guaranteed by Article 54 of the Polish Constitution, and so her post should remain outside the scope of criminalisation of Article 212 of the Penal Code. The Court highlighted the decision of the Supreme Court of 5 June 2019, ref. no. V KK 215/19, which had stated that “The realisation of the protective function of the provision of Article 212 § 1 of the Penal Code cannot lead to the criminalisation of social life, the inherent feature of which is the occurrence of conflict situations, arousing emotions and causing the expression of judgements of behaviour. Their negative reception by other participants of social life does not always have to be assessed in terms of a crime”.

The public prosecutor filed a complaint against the Regional Court’s judgment, maintaining that the post’s terms “machines without brains and heart”, and “murderers” in relation to the Border Guard and its officers performing their duty to protect the borders, defamed persons and a state institution which is established to protect the borders of Poland, and that the statement did not fall within the limits of freedom of speech.

After creating the post, Kurdej-Szatan lost her job at Polish Public Television, and the president of the television channel Jacek Kurski said, “The defence of the Polish border shows how valuable the work of the Polish services and army is. There can be no place in Public Television for people who, by slandering and challenging the defenders of our borders, have themselves placed themselves outside the axiological community of Poles. B. Kurdej-Szatan will no longer premiere on TVP. Due to the previously recorded series, the last episode of the series with her participation will be broadcast on 6.12 this year.”

Play, the largest mobile operator in Poland, with which Kurdej-Szatan cooperated also distanced themselves from Kurdej-Szatan, saying “We can see how much of a stir has been caused by some of the content posted by Ms Barbara Kurdej-Szatan, who appears in Play commercials. The messages published on her private social media profiles express her opinion and are in no way Play’s position”.

Eliza Michalik, a Polish journalist, published an article in which she pointed out that a wave of negative comments towards Kurdej-Szatan’s behaviour had led to her losing her image and good name.

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Decision Overview

Judge Agnieszka Techman delivered the District Court in Warsaw, 9th Criminal Appeals Division’s decision. The central issue to be decided was whether the court of first instance was justified in discontinuing the proceedings against Kurdej-Szatan.

The prosecution had argued at the stage of initiating the proceedings, and then in a complaint against the decision of the Regional Court of December 6, 2022, that Kurdej-Szatan had publicly defamed the Border Guard and its officers by using the terms “murderers” and “heartless machines with no brains with nothing” against them, which are generally considered to be insulting.

Kurdej-Szatan argued that her post was written in response to the video of Border Guard officers using physical force against people (including women and children) trying to illegally enter Poland which had impacted her emotionally, and that it related to the specific situation captured in the video. She submitted that her purpose was not not to criticise the representatives of the Border Guard, but only to refer to that specific situation.

The District Court upheld the decision of the lower court discontinuing the proceedings against Kurdej-Szatana. It noted that a necessary prerequisite for the qualification of an act as a crime is social harmfulness, which must be higher than negligible, as set out in Articles 1 and 2 of the Penal Code. Article 17 § 1 item 3 of the Code of Criminal Procedure requires that where this prerequisite is not fulfilled, proceedings shall not be instituted, and initiated proceedings shall be discontinued. In terms of Article 115 § 2 of the Penal Code, when assessing the degree of social harmfulness of an act, a court shall take into account the type and nature of the violated good, the extent of the harm caused or threatened harm, the manner and circumstances under which the act was committed, the gravity of the duties violated by the perpetrator, as well as the form of intent, the motivation of the perpetrator, the type of the violated precautionary rules and the degree of their violation.

The Court emphasized the protection of freedom of expression in public debate, and that this value encompasses the freedom to express views and to receive and impart information also critical of public authorities. It noted that restrictions on freedom of expression understood in this way should take place in exceptional, necessary situations, and referred to the the European Court of Human Rights cases of Handyside v. United Kingdom and Lingens v. Austria. The Court highlighted that a conviction for the offence defined in Article 212 § 2 of the Penal Code, consisting in defamation by means of mass communication, must be justified by a social need higher than the protection of fundamental rights, which include freedom of expression, and found that a holistic analysis of the post does not justify such a need.

In examing the nature and context of the statement, the Court found that Kurdej-Szatan’s statement was an emotional reaction to the behaviour of the Border Guard officers, captured in the video. It referred to Kurdej-Szatan’s post of November 9, 2021 in which, by explaining the reasons for her earlier post, she emphasised that she posted it under the influence of strong agitation caused by the video she had watched. In the post, Kurdej-Szatan had apologized to the representatives of the Border Guard whom her words may have offended. The Court added that, in reinforcing the argument of the evaluative nature of the statement, Kurdej-Szatan’s post concerned a topic of public interest and that when assessing the degree of social harmfulness of the act, the “brutalisation” of language in the public debate was also taken into account. The Court commented that this did not excuse Kurdej-Szatan, but that it is impossible not to notice changes involving the radicalisation of language especially in social media.

The Court also noted the social context of the negative evaluations presented in the public debate towards the activities of the Border Guard and that the legitimacy of detaining illegal immigrants in a forcible manner in the Polish-Belarusian border area and erecting a wall on the border was a polarising issue in Polish society.

The District Court found that Kurdej-Szatan had not committed the crime of defamation, even though it accepted that the opinion expressed by Kurdej-Szatan was formulated in an inappropriate form and using exaggerated terms. The Court stressed that her statement was of an “evaluative nature” and was not designed to jeopardise the loss of trust in specific people and that it did not harm the image of the specific persons to whose behaviour the post constituted a comment, as the identity of these persons had not been established. However it noted that Kurdej-Szatan had used vulgar and offensive words in her social media posts.

Note: NGOs, humanitarian organisations and journalists had not been allowed within the 3 km border area, which inspired Agnieszka Holland, the well-known director, to make a film entitled Green Border which was awarded the Fuoricampo statuette at the Tertio Millennio festival in November 2023, which was held under the theme, “harmony in diversity”. Adam Bodnar and Agnieszka Grzelak have noted that the humanitarian crisis in the Polish-Belarusian border region led to the European Court of Human Rights issuing interim measures on the Polish–Belarusian and the Lithuanian–Belarusian borders, and that “the cases concerned migrants from Afghanistan and Iraq who were stuck between the borders of the two countries and could not submit their application for international protection. The response of the ECtHR to the dramatic situation concerning the nomadic camp in Usnarz Górny was that it requested that the Polish and Latvian authorities provide all the applicants with food, water, clothing, adequate medical care and, if possible, temporary shelter. This measure was extended on 27 September 2021 to allow lawyers to make necessary contact with applicants. Moreover, the ECtHR requested this group not be pushed back to Belarus”.

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